| Big data technology transforms personal information into data that can be stored at low cost and shared with high efficiency by leaving traces throughout the process,and then forms a data market for transactions.This process creates a great conflict with the existing personal privacy protection system.How to solve the problem of personal privacy protection brought about by the development of big data technology,and to find a way to resolve the conflict between the interests of personal data and the value of data application are the basic problems to be solved by the research in this article,and the starting point of the topic research.Based on the setting of research questions,this article selects the theory and analysis framework of public goods,focusing on three topics: One is to demonstrate the data public goods attributes of personal data.The research in this article shows that personal data has obvious attributes of public goods,lacks a controllable entity that can recognize the free will of rights holders,and does not qualify as an object of rights.In the context of data,personal information rights are lost due to the absence of objects presence.The second is to review the existing personal information protection legislation system based on European and American legislation.Research shows that although the legal background and normative tools of personal data protection models in Europe and the United States are fundamentally different,there is no difference in granting individuals private data rights to data.This “empowering” method violates the attributes of personal data and rights holders It is difficult to achieve "agreement" and "self-determination" and enterprises are difficult to achieve self-discipline,which is not enough to build a barrier to protect personal privacy,cannot promote the active use of personal data,and hinder the sharing and exchange of data.The third is to build a personal data governance model.Based on the public goods attributes of personal data,this article attempts to build a governance model that can regulate the tripartite behavior of individuals,enterprises,and the public sector.According to the model,this article advocates that China's personal data protection legislation should get rid of the path dependence of "private rights-protection" and instead follow the legislative concept of "public goods-governance" to build virtual space governance rules towards the era of big data.The main content of this article consists of the following six parts:The first part is a discussion of personal data attributes,corresponding to Chapter 2 of the paper.On the basis of distinguishing personal information and personal data,this part reveals the non-exclusive and non-competitive characteristics of personal data,and demonstrates that personal data belongs to digital public goods formed by individuals,enterprises and the public sector during the interaction process It is used by users many times,multi-purpose and multi-field.The public goods attribute of personal data determines that it lacks specificity and independence,does not have the function of carrying civil rights,and is not an appropriate object of civil rights.The second part is an investigation of existing personal data protection laws represented by Europe and America,which corresponds to Chapter 3 of this article.Through the investigation of European and American personal data protecting legislation,this article believes that based on the historical tradition of attaching importance to the protection of personal dignity,the protection of personal data is regarded as having constitutional significance and prohibits others from obtaining and using personal data against their will.The United States upholds the position of respecting freedom of speech,emphasizing individual self-management of data and market self-regulation of data utilization behavior.The analysis in this chapter believes that although these two legislative examples rely on different legal principles and normative tools,they all take the path of "empowerment + protection",and there is no fundamental difference in the perspective of economic analysis.The third part is a review of European and American data protection models that focus on control.Corresponds to Chapter 4 of this article.This chapter analyzes the normative technology of "empowerment + protection" based on the attributes of public goods of personal data.The analysis of this chapter shows that the normative technology of "empowerment + protection" aims to protect personal information(or private information)rather than personal data.Therefore,when personal information is converted into personal data,due to the exclusivity and noncompetitiveness of personal data,the principle of notice and consent and the principle of self-discipline are facing difficult dilemmas and cannot achieve their normative goals.The fourth part is the construction of personal data governance model.Corresponding to Chapter 5 of this paper,this chapter is based on trying to build a governance model that can improve the overall welfare with the participation of individuals,commercial enterprises and the public sector.The analysis in this chapter shows that if supervision is absent,companies tend to misuse personal data,and individuals will refuse to digitize personal information in order to protect personal information,which ultimately is not conducive to the overall optimization of personal and corporate welfare.Regulatory intervention is conducive to strengthening the regulation of the use of personal data by commercial organizations,incentivizing the digitization of personal information,and improving overall welfare.The fifth part is the review of China's personal information protection legislation,corresponding to Chapter 6 of the thesis.This chapter retraces the legislative history of China's personal data protection and analyzes the characteristics of China's current personal protection legislation.Research shows that China's current personal data protection legal system is composed of relevant provisions of many regulations,and does not provide for personal data rights or personal information rights The "Personal Information Protection Law(Draft)"(Expert Recommendation Draft)did not solve major legislative difficulties in personal data protection legislation.The sixth part is a summary of the full text,corresponding to Chapter 7 of the paper.The chapter summarizes the full text of the research process and main conclusions,and puts forward some suggestions for improving China's personal data protection legislation.It is recommended that China's personal data legislation should get rid of the thinking dependence on physical space system rules,give up the protection of personal information,and focus on personal data.Of public goods,choose the path of “public goods-governance”,and reconstruct personal data governance standards around the tripartite subjects of individuals,commercial institutions,and the public sector. |
PDF Full Text Request